Citation Nr: 1301794
Decision Date: 01/16/13 Archive Date: 01/23/13
DOCKET NO. 12-26 531 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUE
Entitlement to a compensable rating for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Oklahoma Department of Veterans Affairs
ATTORNEY FOR THE BOARD
J. Chapman, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1960 to December 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for bilateral hearing loss, rated 0 percent, effective September 15, 2010 (date of claim).
FINDING OF FACT
At no time since September 15, 2010 is the Veteran's hearing acuity shown to have been worse than Level I in the right ear or Level V in the left ear.
CONCLUSION OF LAW
A compensable rating for bilateral hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.85, 4.86, Diagnostic Code (Code) 6100 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).
As the rating decision on appeal granted service connection for bilateral hearing loss and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). An August 2012 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating and readjudicated the matter. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error).
The RO arranged for a VA examination in January 2011. A review of the examination report shows that it contains sufficient clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating purposes. The record includes 2001 and 2003 (endorsed in 2010) audiometry charts that have not been reduced to numerical values. Because such audiometry was not during (or proximate to) the evaluation period, and would not have bearing on the rating for the Veteran's hearing acuity during the evaluation period, the Board finds that interpretations of the charts need not be sought. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met.
Legal Criteria, Factual Background, and Analysis
The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. The appropriate evaluation for hearing impairment is determined under the criteria in 38 C.F.R. §§ 4.85, 4.86.
The Rating Schedule provides a table (Table VI) to determine for rating purposes a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state-licensed audiologist) including puretone thresholds and speech discrimination (Maryland CNC test). See 38 C.F.R. § 4.85. Where the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when there is an exceptional pattern of hearing impairment (as defined in 38 C.F.R. § 4.86) the rating may be based solely on puretone threshold testing. See 38 C.F.R. § 4.85, Table VIA. One exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies (1,000, 2,000, 3,000 and 4,000 Hertz) are 55 decibels or greater. Another occurs when the puretone threshold at 1000 hertz is 30 decibels or less, and the threshold at 2000 hertz is 70 decibels or more. See 38 C.F.R. § 4.86(a)(b). Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear.
Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).
Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). As will be discussed below, the current 0 percent rating assigned for the Veteran's bilateral hearing loss encompasses the greatest level of hearing impairment shown at any time during the appeal period; accordingly, "staged ratings" are not warranted.
The Veteran's claim seeking service connection for bilateral hearing loss was received on September 15, 2010.
The only audiometry during the evaluation period suitable for rating purposes of record is that on January 2011 VA audiological evaluation; it shows that puretone thresholds (it was certified that air conduction studies provided the better estimate of the Veteran's hearing acuity), in decibels, were:
HERTZ
1000
2000
3000
4000
Average
RIGHT
40
55
65
65
56%
LEFT
55
65
65
70
64%
Speech audiometry (Maryland CNC list) revealed speech recognition ability of 92 percent in the right ear and of 94 percent in the left ear. Moderately severe, sensorineural hearing loss was diagnosed in both ears. It was noted that the Veteran's occupation had been graphic artist/art director/art teacher. The examiner opined that the effect of the hearing loss on his occupation and daily living would be difficulty hearing at a three foot or greater distance without the use of hearing aids; it was noted that the Veteran wore hearing aids.
Audiometry on January 2011 VA audiological examination showed a right ear puretone threshold of 56 decibels and right ear speech discrimination of 92 percent. Under Table VI, such hearing acuity constitutes Level I hearing in the right ear. The audiometry in January 2011 showed an exception pattern of hearing impairment (as defined in 38 C.F.R. § 4.86) (because puretone thresholds at 1000, 2000, 3000, and 4000 hertz were all 55 decibels or higher). Accordingly, the left ear hearing acuity may be determined under either Table VI or Table VIA (whichever is more favorable to the Veteran). Under Table VI, the puretone threshold average of 64 decibels and 94 percent discrimination reflect Level II hearing; under Table VIA, the 64 decibel puretone threshold average warrants a designation of Level V hearing acuity. Hence, Table VIA produces the result more favorable to the Veteran.
Under Table VII, the Level 1 hearing acuity found in the right ear combined with the Level V hearing found in the left ear warrant a 0 percent rating under Code 6100. .
The Veteran's December 2011 notice of disagreement argues that he was unaware that the Maryland CNC test was required to determine speech discrimination, and requests testing with such list. In that regard, the Board observes that the Veteran's speech discrimination has already been tested with the Maryland CHC list (on January 2011 VA examination). Furthermore, as is noted above, for the left ear puretone testing alone produces a more favorable result. Notably, the Veteran does not claim, nor does the record suggest, that his hearing loss has gotten worse since the January 2011 VA examination. That examination is adequate as the examiner elicited all pertinent history; reviewed the record; conducted a thorough examination with explanation of all findings; and commented on the effects that the Veteran's hearing loss would have on occupational and daily functioning.
Regarding the Veteran's assertion that his hearing impairment is greater than that reflected by the 0 percent rating assigned, the Board acknowledges that he is competent to testify as to symptoms he experiences, including difficulty hearing. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, as a layperson, he is not competent to establish the level of his hearing disability by his own opinion. As was noted above, the rating of hearing loss disability involves the mechanical application of the rating schedule to findings of controlled audiometry, which here results in a 0 percent rating. See Lendenmann, 3 Vet. App. at 349.
The Board has considered whether referral for extraschedular consideration is indicated. The evidentiary record does not show any manifestations of, or functional impairment due to, bilateral hearing loss not encompassed by the scheduler criteria. The functional loss noted on January 2011 VA audiological examination (difficulty hearing in occupational situations and with daily activities) is fully contemplated by the scheduler criteria. Further, the examiner observed that the loss is mitigated by the use of hearing aids. Notably, on January 2011 examination the Veteran himself indicated that he does not experience any overall functional impairment due to the hearing loss disability. The Board finds that the scheduler criteria clearly encompasses the symptoms and impairment shown and are not inadequate, and that referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). There is also no evidence (or allegation) that the Veteran's bilateral hearing loss has rendered/would render him unemployable. Hence, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009).
The preponderance of the evidence is against this claim; therefore, the appeal in the matter must be denied.
ORDER
A compensable rating for bilateral hearing loss is denied.
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GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs